In California, you can be arrested for DUI if you have a blood alcohol concentration (BAC) of 0.08% or higher. You can also be arrested if you are driving under the influence of alcohol or drugs, regardless of your BAC.[1] In order to avoid arrest, you should try to avoid giving the police officer as much information as possible. Generally, you should refuse to answer questions and decline to take a preliminary alcohol test. If you do get arrested, then you should find a qualified DUI attorney to help defend you.

Steps

Part 1

Dealing with the Police

1

Pull over when safe to do so. As soon as you see police lights in your rearview mirror, you should be looking for the first safe place to pull over to the side of the road. After stopping, turn your engine off and roll down your window.[2]

If it is at night, then turn on the light inside your vehicle. This will allow the officer to see you as he or she approaches.

After you turn on the light, don’t make sudden movements. The officer might believe you are trying to hide something, such as a beer bottle. Sit with your hands on the steering wheel.

2

Hand over requested documents. You must give the officer your driver’s license, registration, and proof of insurance.[3] If you keep them in a glove compartment, then tell the officer: “They’re in the glove compartment. Can I get them?”

3

Avoid talking too much. You have a right to remain silent, and you should exercise that right.[4] However, the officer will still try to get you to answer questions. Typically, the officer will ask:

When did you last drink? You can say, “I don’t remember” or “I don’t want to answer that.” You might feel uncomfortable not answering, but remember that it is your right not to.

How much have you had to drink? Always answer “I don’t want to answer that.” Speak crisply and don’t slur your speech.

Where are you headed? If you’re headed home, you can say that.

4

Remain polite. It is critical that you be respectful.[5] If you are rude, then the officer might prolong the stop. You should always call the officer “Ma’am,” “Sir,” or “Officer.”

Also don’t try to speak over the officer. If he or she has something to say, then quietly listen.

You may be angry or nervous, but it is important to remain calm. If you aren’t calm, then it will be hard to stay polite. Take a deep breath if you need to and hold it for several seconds. Then release the air.

5

Do not consent to a search. The officer might want to search your car or belongings. You should decline. The officer is only looking for evidence that helps them build a case against you. Any evidence they find can be used later in court.

In order to search your car without permission, the officer generally needs probable cause that your vehicle contains evidence of a crime. However, the officer can also search if evidence of a crime (such as an open beer can) is in plain sight.[6]

Realize that the officer is asking for your consent because they don’t have probable cause and no evidence is in plain view. Instead, they hope you consent so that you can make their job easier for them.

You should say, “No, Officer, I don’t consent to a search.”

6

Follow the officer’s directions. The officer might ask you to step out of the car. If so, then you should comply. The officer might also ask that you stop smoking or turn your music off. You should always follow the officer’s instructions.[7]

If you get out of the car, remember not to lean against it. The officer might assume you are unsteady because you are intoxicated.

7

Refuse a field sobriety test. These tests are designed to test your coordination. For example, the officer might ask you to stand on one foot or to walk in a straight line. However, many people lack coordination even when sober, so taking the test is probably not a good idea. Instead, you should refuse.[8]

You can say, “I’m going to decline, Sir, since they’re voluntary and too subjective.”[9]

The officer might claim that you should take the test so that he or she can let you go if you pass. In reality, the officer can’t keep you indefinitely without probable cause that you are drunk driving or committed another crime. The officer wants you to take the test in hopes that you fail, not that you pass.

Part 2

Considering Whether to Take a Breath Test

1

Take the preliminary alcohol screening test, if required. There are really two breath tests in California: a test before you are arrested and a test after you are arrested.[10] The purpose of the first test is to build a case against you so that you can be arrested. You don’t have to take the preliminary alcohol screening test (PAS) unless the following applies:

You are under age 21. You can’t refuse a PAS if you are.

You are on probation for a DUI.

2

Refuse the test if you can. There is generally little to gain by taking a PAS. If your BAC is 0.08% or higher, then the officer has probable cause to arrest you. However, even if you score below 0.08%, the officer can still arrest you if they think your driving has been impaired.

Generally, there is no real reason to take the roadside test unless you are absolutely sure you haven’t been drinking. Even then you probably shouldn’t take it, since the results could be tampered with.

If the officer asks why you are refusing, then say, “I know the test is voluntary and it is highly inaccurate.”

3

Ask if you can leave. If you’ve refused to answer questions and refused to take tests, then the officer has to either arrest you or let you go if they don’t have probable cause. Don’t just turn on the car and start driving away. Instead ask, “Can I leave now?”[11]

The officer might try to keep you by asking you more questions or waving a flashlight in your face.

Continue to refuse to answer any questions. Instead, answer a question by saying, “I’m not going to answer that. Can I leave?”

4

Submit to a test once arrested. If you get arrested, then you are required to take either a breath test or a blood test. You should be given a choice between the two, and you should take the breath test, because they are less reliable.

If you go to trial, you can argue that the breath test results are not valid.[12] By contrast, a blood test is far more accurate. You can help build your defense by taking the breath test.

You gave implied consent to take a test after arrest when you got your driver’s license. If you continue to refuse, then your license will be suspended.[13]

5

Ask for a lawyer after being arrested. You should continue to remain silent throughout the entire arrest and the time at the police station. However, you should also say, “I want an attorney” after you are arrested.

At the station, you will be booked. You may be able to call an attorney after the booking.

Part 3

Hiring a DUI Attorney

1

Find the names of DUI attorneys. You should look for someone who handles many DUI cases. This person will understand what kinds of defenses you can bring.[14] An attorney who has a general practice might be an excellent attorney, but he or she will need extra time to get up-to-speed on the science of DUI cases.

You can ask friends or family if they have been arrested for DUI before. If they have, then ask if they would recommend their attorney.[15]

You can also contact the California Bar Association at 866-442-2529. They have information on referral networks you can contact to get a referral to an attorney.

Also look in the phone book. DUI attorneys often advertise in the Yellow Pages.

2

Research each attorney. Once you have a list, you should go down through and perform background research on each attorney. Look for any reason the attorney might not be qualified to represent you.

Check the lawyer’s practice experience by looking at the website. Check that he or she handles DUI cases as a large part of their practice. If not, then move on.

Look to see if the lawyer has been disciplined for an ethics breach. Each state has a board that investigates ethics complaints. In California, you can do an attorney search at the state bar’s website.[16]

Also read any online reviews. You can find these by doing a general Internet search.

3

Schedule a consultation. You should remove any unqualified attorneys from your list. Then you should call and schedule a consultation with those remaining on the list. Consultations usually last 15-30 minutes.[17] Often, DUI attorneys provide consultations for free. If not, be sure to ask how much the attorney charges.

Check what information you need to bring to your consultation. For example, the attorney might want to see your bail papers, the police report, and any court document.[18]

You should also write down your memories of the police stop. Write down what the officer said and did, and what you said and did in return.

4

Answer the lawyer’s questions. At the consultation, the lawyer will ask you questions to get a feel for your case. You should answer honestly. Anything you say in your consultation is a client confidence which the lawyer can’t tell anyone else.[19]

5

Discuss fees. You definitely want to know how much the lawyer charges.[20] Unfortunately, they don’t publish this information on the Internet, so you might find out you’re talking to someone whose fee you absolutely cannot afford. Ask the following questions about fees:

What is the lawyer’s hourly fee?

Can you get a fixed-fee arrangement instead? This is a set amount of money you pay regardless of how much work the lawyer does.

What is the lawyer’s estimate for how much it will cost to defend you? The lawyer can’t make promises, but you can ask for a ballpark figure.

6

Ask other questions about your defense. To help you understand what will happen in your case, you should have the lawyer describe your case’s strengths and weaknesses. Also ask the following:

What is the likely outcome?

What options do you have? For example, could you get a plea deal?

What kind of community service or jail time are you looking at if you take a plea?

Does the lawyer think you could win at trial?

7

Hire the lawyer. Go through your notes and analyze each lawyer you met with. Compare them to each other. Did you feel comfortable with one lawyer more than the others? Did one lawyer explain things in a way you could understand? If so, then you should probably go with that lawyer.[21]

Call him or her up and say you want to hire them. They should send you an “engagement letter” or “fee agreement.” Read this closely and make sure you agree with everything in it. Raise any objections with the lawyer.

If you didn’t feel comfortable with any of the lawyers you met with, then you should get more referrals.

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Tips

Don’t forget to request a hearing in a timely manner. You need to call the DMV number on the pink form you were given. You have to make a request for a hearing within 10 days.[22] Your attorney can do this for you, but you might not have an attorney by then.